Impartial Hearing Decision

TO:

MS KAREN

SCHOOL DISTRICT

BY: MS. STEPHANIE L. ESQ.

OFFICE OF REGINA

BY: MR. JESSE ESQ.

MR. TERRANCE

MRS. LAURIE

FROM: PAUL M. ESQ

IMPARTIAL HEARING OFFICER

IN THE MATTER OF THE IMPARTIAL HEARING UPON THE

REQUEST OF Y. AND L.L. ON BEHALF OF Y., THEIR

DAUGHTER

PETITIONERS,

AND

THE UNION FREE SCHOOL DISTRICT,

RESPONDENT

HELD PURSUANT TO PART 200.5, SECTION (I) OF THE

REGULATIONS OF THE COMMISSIONER OF EDUCATION

AND SECTION 4404 OF THE NEW YORK STATE

EDUCATION LAW

BACKGROUND

The undersigned was contacted on or about November 13, 2012, to act as an Impartial Hearing Officer to hear the application of, Mr. Y and Mrs. L the Parents of M (hereinafter referred to as M), with respect to their request for a hearing in writing dated November 9, 2012 from the office of Regina L.L.P. by Attorney Jesse Esq. The request was contained in a five page document. The School District appointed the undersigned as the hearing officer by letter dated November 14, 2012, received on or about November 15, 2012. On November 17, 2012, the undersigned sent a letter to the parties advising them of my appointment as hearing officer and the date by which the resolution session must be held. An Answer from the School District, dated November 15, 2012, was received by the undersigned. I was advised by letter dated December 7, 2012, and sent to me by e-mail on December 18, 2012, signed by both side's attorneys that indicated that the parties waived the resolution session. The undersigned, after consultation with the attorneys for both parties, set the matter down for a conference to be held at the School District on January 3, 2013, the first available date that all the parties could assemble. The purpose of this initial conference was to establish jurisdiction, discuss the issues, narrow them to the extent possible, and established a hearing schedule. A letter to that effect was sent by the undersigned to the parties on December 8, 2012. After that letter a call was received indicating that the matter needed to be adjourned. The conference date was changed until January 22, 2013.

At that conference the School District was represented by,

Ms. Stephanie L. Esq., of Counsel and the Petitioners were represented by the office of Regina Mr. Jesse Esq. of counsel. After that initial conference, the hearing was begun on February 4, 2013, and testimony was taken on that date. The hearing was continued for testimony on February 4, 2013, February 25, 2013, March 4, 2013, March 7, 2013, April 25, 2013, and concluded on July 9, 2013.

At the conclusion of the testimony, the parties agreed upon a schedule within which the parties might submit briefs on the issues presented. The final portion of the transcript was received by the parties, and by agreement based upon the date of the receipt of the final day’s transcript, the date for submission of briefs was to be calculated. Thereafter at the request of both parties the undersigned extended the date of the close of the record several times with the Briefs to be filed by the parties on or before September 9, 2013, and the Decision date was extended until September 23,2013. The undersigned received the memorandum from counsel for the School District and from the Petitioners counsel on or about September 9, 2013. Several days thereafter I received copies of the cited cases from each of the parties. The record was therefore deemed closed on September 9, 2013. The time to render a decision was extended until October 9, 2013 and then again until November 8, 2013.

The undersigned Hearing Officer entered Hearing Officer Exhibits 17 into evidence, at the outset of the hearing, to establish jurisdiction and define the issues as outlined by the parties in their papers.

Appearing as witnesses on behalf of the School District in their case in chief were the following witnesses:

Speech and Language Pathologist

, Special Education Teacher

6th Grade English Teacher

Former 6th Grade Math Teacher

Occupational Therapist

7th Grade Special Education Teacher

In rebuttal the School District also called or recalled:

Middle School Counselor

Introduced into evidence by the School District during the course of the hearing were exhibits:

School District 1-76.

Appearing as witnesses for the Petitioners were:

Dr. Pathologist and

Educational and Consultant

Y-Father of M

L-Mother of M

Introduced into evidence by the Petitioners were exhibits:

Parents A-DD

At the hearing the Petitioners, Y. AND L., were represented by The Office of Regina and Associates, LLP, Mr. Jesse

Esq. of counsel

The Respondent School District was represented by P.C., Ms. Stephanie L. , Esq., of Counsel

At the conclusion of the hearing, the relief requested by the Petitioners was as follows:

Reimbursement to the Petitioners for tuition costs at the School, the school unilaterally selected by Y and L to be attended by M. The reimbursement requested was for the school year 2012-2013.

FINDINGS

M is a female middle school student, born on January 22, 2000, and thus was 12 when the hearing was requested, and then 13 years of age at the time of this decision. M was classified as during first grade while attending a District Elementary School. She has continued in that classification throughout her subsequent years in the School District.

Testimony was taken with respect M's sixth grade school year to have sufficient background to assess the appropriateness of the proposed IEP for the 7th grade, that is for the 2012-2013 school year, the year in issue before the undersigned.

The IEP before the undersigned in this hearing has a meeting date of May 30, 2012, as a follow up date to an earlier meeting held on May 2, 2012. These two meeting constituted the Annual Meeting to develop the IEP before the undersigned for M’s 7th grade. It indicates that the following parties were present at the meeting Chris School Psychologist; MaryAnn General Education Teacher; Karen Special Education Teacher; Stephen Special Education Teacher; Lydia Advocate and Special Educational Consultant who performed a Privately Obtained Educational Evaluation; Eileen

Occupational Therapist; Lori General Education Teacher; Andrea Krinske, Speech Pathologist; Barbara Principal Middle School; L, Mother; Y, Father.

The committee reviewed the following reports in connection with their determination of the program for the coming 7th Grade year:

1. Evaluation completed, May, 2012

2. Parent Report and Evaluations (5/2/2012)

3. Teacher Report date (5/2/2012) with Verbal Reports also supplied by MaryAnn and Lori

4. Classroom Observations (3/14/2012

5. Psychoeducational Evaluation (10/19/2011)-

“Psychoeducational Evaluation & Language Consultation” received on 3/19/2012

6. Annual Review (5/19/2011) and oral report

7. Parent Report and Observations (5/19/2011) and oral report

8. Classroom Observation (1/7/2010

The CSE also reviewed the following Test and Subtest Results with scores as indicated:

1. Wechsler Individual Achievment Test-Third Edition

(10/19/2011)

Math Fluency-Addition Standard Score),

(3 Percentile)

Math Fluency-Multiplication (Standard Score),

(21 Percentile)

Math Fluency-Subtraction Standard Score),

(30 Percentile)

Math Problems Solving Standard Score),

(19 Percentile)

Numerical Operations (Standard Score),

(61 Percentile)

Pseudoword Decoding (Standard Score),

(32 Percentile)

Pseudoword Decoding Speed n/a (Standard Score),

( Percentile)

Spelling (Standard Score)

(58 Percentile)

Word Reading (Standard Score)

(34 Percentile)

Word Reading Speed n/a(Standard Score)

(25 Percentile)

2. Wechsler Intelligence Scale for Children-IV (10/19/2011)

Full Scale (Standard Score)

Perceptual Reasoning (Standard Score)

Processing Speed (Standard Score)

Verbal Comprehension (Standard Score)

Working Memory (Standard Score)

3. Developmental Test of Visual Motor Proficiency (11/25/2009)

Standard Score

4. Motor-Free Visual Perception Test (11/25/2009)

Perceptual quotient

5. Conner’s Teacher Rating Scale-Revised (11/17/2009)

Cognitive

Hyperactivity T Significant

Oppositional T Significant

6. NEPSY (11/17/09)

Animal Sorting SS

Design Copying SS 10

Memory for Designs SS 8

Narrative Memory SS 18

7. Wechsler Intelligence Scale for Children IV (11/17/09

Full Scale 23%

Perceptual Reasonig 14%

Processing Speed Coding 58%

Verbal Comprehension 45%

Working Memory (Arithmetic) 18%

8. KTEA II (11/13/09)

Letter and Word Recognition SS

Math Computation SS

Math Conception and Application SS

Reading Comprehension SS

Spelling SS

Written Expression SS

9. CELF-4 (6/08/09)

Concepts & Following Directions

Expressive Language

Expressive Vocabulary

Formulated Sentences

Recalling Sentences

Receptive Language

Sentence Assembly

Understanding Spoken Paragraphs

Word Classes-Receptive

Word Classes-Expressive The IEP did not indicate that MY had any State or District Wide Assessments.

The Special Educational Program contained in the IEP provided for the following program and Related Services for the entire school year of 7th Grade:

Resource Room Program 5:1 4 x 6 day cycle, 42 min.

Consultant Teacher Services: Direct3 x 6 day cycle, 42 min.

Consultant Teacher Services: Direct 3x 6 day cycle, 42 min.

Consultant Teacher Service: Indirect 1 x Weekly, 30 min.

Individual 1 x Weekly, 30 min.

Therapy Small Group 2 x Weekly, 30 min

The IEP indicated that M was to receive testing accommodations which accommodations were also to applied to State Assessments. She was to receive extended time, flexible setting, directions repeated with explanation as needed. M was also to receive task focusing prompts which would include reminders to slow down. She was, however, to participate in State and District assessments with the accommodations indicated.

I have indicated all of the above evaluations and reports reviewed by the Special Education Sub-committee to show the extensive nature of the review that was taken and the thought process that went into planning the IEP for YM’s 7th Grade school year. There were two meeting required to complete the annual review and the development of the IEP for 7th Grade. The first took place on May 2, 2012. At that meeting it was decided that a more comprehensive Speech and Language review was required (Trans.P. 81-82). The second meeting took place on May 30, 2012, the date of the IEP before the undersigned. At this second meeting the committee also had access to an auditory processing report that M’s mother provided and the updated speech and language report (Trans.P. 88).

Christine a permanently certified New York State School Psychologist and the School Districts first witness, testified at length about the meaning of the tests and the scores received by M in the various tests that were reviewed by the committee during their deliberations. Over the years and at least for one of the meetings that developed the IEP before the undersigned she acted as chairperson at two of the IEP meetings concerning M. This testimonial review also related and compared the scores received on the various educational and performance tests that were performed by the parents’ Educational Consultant, the Center. It also reviewed the recommendations made in the Center report (See Trans. P. 44-84 and Exhibits S.D. 1 and S.D. 9).

In response to the question, “What is your assessment of M’s cognitive functioning?”(Trans. P. 75). In summary of the testing, during her direct testimony she replied with the following: “It shows a student with skills in the average range generally. There are—there is some variability. It shows that she has a little bit of difficulty with working memory. She is at the 21st percentile, meaning that one out of five children would score lower than her in a typical age group.”(Trans.P. 75). She went on to state, “It does show that she improved in three out of four of the indexes. She scored a little bit lower in one, which she has scored a 13 in Symbol Search. Symbol Search is a quick comparing visual symbols process. She went down in that, in that subtest. But other than that, I’m seeing the she’s keeping up with—with her own abilities and then improving over time. You expect to see the same standard scores at different ages.” (Trans. P. 75).

During her testimony, Christine indicated that she had been told that M’s mother had indicated that she had signed a pre-contract with and was not interested in the recommendations that the committee was making. (Trans.P.85). It was requested that the second and final meeting to develop the IEP for the 7th grade be held before June 1st because that was when a payment had to be made to (Trans.P.86). As indicated the second meeting that developed the IEP was held on May 30, 2012.

When asked, ‘was it your impression that M was capable of being educated in a mainstream or regular education class, with the support of consultant teach services”, Ms. indicated, “Yes, Yes”. She went on to answer why, indicating, “she was showing benefit. She was showing progress, both academically and in her self-confidence, her independence. Societally she was showing progress, and her teachers all felt that she was benefiting from the mainstream environment.” (Trans.P.111).

During cross examination Ms. indicated that M’s Special Education teacher, Ms. indicated that M was making good progress in writing, math, her confidence and her independence, this at the May 30, 2012 meeting of the CSE sub committee developing the IEP for 7th Grade. (Trans.P. 132, 133.). She went on to indicate that the committee was informed that as the year progressed M was better able to attend for longer periods of time.

Ms. Nicole , a licensed pathologist, reviewed the report from the Center provided by the Parents to the school with respect to the speech and language testing reported therein. She indicated that M performed within the average range on the Peabody Picture Vocabulary Test, Fourth Edition. (Trans.P. 187). M also performed within the average range on the Expressive Language Test, Second Edition, (Trans.P.188), and the Listening Test for Adolescents (Trans.P. 188). (See also the results of the a number of other Speech and Language Tests and subtests reported on by the Soifer Center and described during Ms Dinis’s Testimony (Trans.P 190-P198). After describing the program anticipated by the IEP for 7th Grade she indicated, “So I think she would have made progress.”(Trans.P. 211).

Ms. Karen M’s Special Education Teacher, who provided the consultant teacher services in 6th Grade and who reviewed the services that would be provide by her as the provider of consultant teacher services pursuant to the IEP for 7th Grade. She indicated that as Special Educational consultant she would be in the classroom, a minimum of three times out of a six-day cycle for both English Language Arts and for Math. While in the class she indicated that she would provide support to M and make sure that she stayed on task, make sure that she understand the directions, and help her with assignments.(Trans.P.281). She indicated that, “I think she made very good progress especially in the areas of reading and writing. I think if you look at her writing work from the beginning of the year, it was very immature, and by the end of the year it was becoming much more sophisticated.” (Trans.P. 305).

Eventually she went on to indicate (referring to the 6th Grade year), “I thought they developed a great deal and I think that, you know, if you see the quality of the work from the beginning of the year to the end of the year, that you can see that she became much better—much more competent in that skill, in the particular skill” referring to her reading and writing skill. (Trans.P. 324).

When asked during cross examination about discussing a more intensive self-contained class within the district Ms. ndicated, “I didn’t feel that that would be appropriate.(Trans.P.426).

We then heard from Ms. Maryann M’s 6th grade humanities and English reading and writing teacher. During the year Ms. gave four reading assessments to M (in the order of the dates of the assessments SD 21,20,17 and 18). She indicated that M had good comprehension and strong fluency. (Trans.P. 483). A review of the exhibits shows progress in reading from a level R to level U. (See also SD 22). A review of SD 28 shows the growth shown from October, 2011 to May, 2012. The exhibit indicates that the growth expected for a year should be 75-100 Lixiles per year. M exhibited a growth of 62 Lexiles. A growth that is third from the bottom of the class but within 2 Lexiles of the next two highest students. It shows growth during the year though less than the yearly expectancy range. This point was again brought out on cross examination of the witness (Trans.P. 559-563).

Ms. went on to during her direct testimony to state, “She became more confident. She became less distracted. Her stamina improved. She took independent ownership of many of the skills we were teaching. Her comprehension improved and, in writing, there was a very big improvement in her sentence development, her sentence fluency and the way she could elaborate. (Tran.P. 524).

Thereafter we heard from Lori a now retired 6th grade math and science teacher. She taught M math and science and a small AIS class for special attention with about 5 students in the class. Although the testimony involved a lot of details she eventually went on to state, “She was making good progress. And again, there, the organization, she is definitely one who knows what to do, like in terms of the procedure and things like that. She was not one at all that had to be reminded, oh, you have to take this out or you have to take that out, or we are doing this now. She has wonderful skill in that way, which is great. That is a wonderful asset….She is very good with that type of time management and things.”(Trans.P. 605-606). When asked about M’s improvement in math and science she indicated, “…her pretest scores and her post-test scores, which showed the tremendous improvement that she made from one to another. During cross examination she again reiterated, “She made great improvement. I would say the percentage is hard to judge, but she made great improvement, as is indicated by her state assessment.” (Trans.P. 638). In answer to a question she then went on to confirm that M received a 3 on the state assessment which was an improvement from the one or two from the prior year.

Ms. Eileen , an herapist, was called as a witness by the School District but was excused until and unless herapy became an issue at this hearing. herapy not being a part of M’s IEP and thus not yet presented as an issue in this hearing.

Thereafter the School District called Stephen a Special th Education teacher in the School Districts 7 Grade. He provided instruction in Mathematics, English and Science as a direct provider pushed into the class. He also provides instruction and help in resource room classes and provides content area support. (Trans.P.646). He went on to indicate the he would be the resource room teacher to provide consultant teacher support in her math and English classes, and her science class. He would also provide indirect consultant teacher services.(Trans.P.648). These both as contained in the IEP before the undersigned.(S.D. Ex. 1). He went on to indicate that this would mean in the manner in which the 6 day schedule was arranged he would see M two periods each day.(Trans.P.651). Thereafter he went into a detailed description of how he would address each of the goals contained in the IEP as it pertained to him. (Trans.P. 651-669). The cross examination went through the levels of performance contained in the IEP.

At the conclusion of the Cross examination, the School District rested its case.

The Parents called Lydia who indicated that she was licensed by the State of New York as a pathologist and held a certificate of competence from the American Speech-Language and Hearing Association. She is currently the director of the Center for Learning and Child Development. She went on to explain that this is a multidisciplinary center of psychologists, language and speech pathologists, special educator, and reading teachers who provide diagnostic, remedial and teacher training services.(Trans.P.732). She then went on at some detail about her background the nature of the Center and the services and testing that they provide. (Trans.P. 732741). She identified S.D exhibit 9 as a report that her Center produced with respect to the Evaluation performed with respect to M.(Trans.P.742). The report contained the results of a Psychoeducational evaluation performed by Dr. Sidel. Overall the testing involved cognitive measures, academic performance measures and personality and emotional functioning. The report in sum and substance indicated that M, “has an disorder, and every child with an will have disrupted executive functions which has an impact on the youngster’s cognitive performance, and, as such, on the child’s linguistic performance.”(Trans.P.747).

Dr. went on to indicate that a language consultation was done on M by Ms. One of Ms. findings was that M had word-retrieval difficulties and that she has organizational difficulties. In discussing her report Dr. went on to state, “She isn’t organized, and she has difficulty getting her language in order as a reflection of how her thoughts are not always hierarchically ordered, and she misunderstands what is said to her at times, answering inappropriately because she misinterpreted what was being said.” (Trans. P. 751). She went on to state that M’s, “perceptual reasoning score in the Wechsler Intelligence Scale for Children is marked in the 50th percentile, slightly higher when time limits are removed.” (Trans.P. 752).

In discussing that part of the report that showed the results of Dr.

testing she indicated that M, “ had a full scale IQ of , but it represents variability between the average scores in the verbal comprehension and perceptual reasoning, and those support functions, working memory and processing speed, so that a difference of ten points or more is considered statistically significant, which is why Dr. opted to give her the general ability index, which factors outa the working memory and the processing speed, more to what is this child’s innate potential.”(Trans.P. 759). Dr. later went on to indicate that the testing indicated that M, “was reading fluently but tended to make more errors than other kids her age, low end of average range, which Dr. noted was the middle of fifth grade, M was in the sixth grade at this time.” (Trans.P. 762).

When asked to sum up the findings, in pertinent part she indicated, “on paper, in some ways, better by the numbers or okay by the numbers, when you analyze them and you analyze her performance, her difficulties and vulnerabilities, you see a youngster who is perceived as okay but isn’t really. The constellation of the attention difficulties, the executive function constraints that she experiences, her style of thinking, her language, the fact that all of her skills are not well integrated for her use when she need them, as she needs them, and her awareness of that make her, underneath, less happy that she might otherwise appear to be. School is harder for her that she wants it to be. She is not the most organized kid. She doesn’t process information, complex verbal information, quickly. She is distracted neurologically and distracted by some of her emotional concerns, and in—her interactions with the therapist indicated frustration.” She then went on to state, “ She is a nice girl, who, on paper, looks kind of sort of average, but, in fact, when you look underneath it, you’ve got a kid with an disorder with certain vulnerabilities that make learning and socializing a challenge for her.”(Trans.P. 768,769).

When Dr. was asked what her report indicated as recommendations in sum and substance they were as follows (Trans.P. 769-771):

1. Alternative school setting with children of similar learning style and needs where all of the teachers were trained to address those needs. School was specifically mentioned. (See S.D. Ex 6 and Trans.P. 819)

2. Smaller school setting with specially trained teachers in an environment where the pace could be controlled where thinking about how to think could be taught.

3. That she have very specific cognitive linguistic therapy to heighten her awareness of how she used language.

4. Comprehensive language evaluation and that her medication be reviewed.

5. An occupational therapy evaluation (An issue that both parties indicated was not an issue in this hearing.)

Dr. went on to explain, “The sense was that she needed more direct remedial instruction to stabilize and build skills, where the environment, the language environment, could be controlled and where the curriculum was designed not only to teach content, but to teach the metacognitive skills in a very direct and conscious way that was repetitive and consistent across classes, where individual attention to specific needs could be provided to here, where the peer group was more homogenous so that instruction could be more tailored to the group, and where there was an understanding of the differences between support and accommodations versus remediation and direct instruction.”(Trans.P.771-772).

Dr. attended both meetings of the CSE preparing the IEP for th M’s 7 grade, that is the May 2 and May 30 meetings. The committee accepted Dr. Soifer’s recommendation stated orally at the May 2 meeting and contained in her report that a evaluation be performed. This evaluation was ordered to take place at the conclusion of the May 2 meeting. It was in fact an evaluation that was conducted at the Center by Elia . It was to be completed prior to the next meeting which was ultimately held on May 30. (Trans.P. 779-781). Dr. reported that it was indicated by the teachers that M had made progress during the 6th grade year. She went on to indicate, “ Of course, she’s going to make some progress. But is the progress consistent with what would be expected for a youngster and how is it being measured.”(Trans.P. 776,777). A review of the testimony about the results of the speech and language testing show that most of the tests showed that MY performed in the average range, some high some low from the 20th percentile to the 87th percentile. (Trans.P. 787). As a result of the testing and the discussions, most particularly the contribution of Dr. Soifer as indicated by her testimony, during both the May 2 and then May 30th meetings, services were added to the IEP(S.D. Ex 1).

As previously indicated Dr. recommendation was specifically that M go to School which is located in In answer to why she indicated, “Because despite her average intellectual ability, she had the accumulated difficulties that come from the attention deficit and the executive function disruptions which impede your ability to learn, to perform in activities of daily living, and socially, make you look less smart than you actually are, and because of the array of language difficulties that she had, it’s a setting in which those are directly addressed in every class.” She went on to indicate, “And there’s integration of curriculum from science to social studies to English, because the pattern of how the children are taught is consistent across subject areas, and the groupings are homogeneous. So she would have the benefit of a special ed teacher and the language therapist in a setting where they are specifically trained to teach children who think and learn and communicate, both orally and in writing, the way M. does, so it allows for her to have more appropriate instruction for her learning style.” (Trans.P. 820).

Dr. after indicating that she was not employed by the school did indicate that she was an invited presenter at their conferences and has over the years referred children to the school and observed the school on behalf of those children. She then went on to describe the nature of the school. She stated, “… is and independent special education school for children with language and learning difficulties, typically who have average intellectual ability. The class sizes vary from two to eight children, depending upon the needs. There are no grades. The children are grouped by ability level. The program is structured so that not only do they have writing and reading and science and other content area subjects, they also all participate in subject called tutorial, which is to focus specifically on literacy instruction, and those skills are transferred to each of the content area teachers.” She continued, “Each also have a period each day called Call Back, so that if a teacher observes a child struggling with a particular concept or skill, that youngster is then brought back in for, basically, a 20-minute tutorial specifically in that area.”(Trans.P. 820-822).

Dr. then went on to describe more of the program, “Each child has an advisor who monitors the needs of her advisees and communicates with the teachers on a daily basis. There are multiply language and speech pathologists in the school, who see the children, both on an individual basis, as what, in school, would be called push-in. They participate in the classroom, and as teachers, the language therapists teach reading, writing, literature, and consult with every subject area teacher in how curriculum should be presented and how it needs to be structured so that the children can learn from it.” (Trans.P. 822-823). She went on to indicate that she had visited the school to observe MY in here science, tutorial and literature classes and related what she observed in each of those classes.(Trans.P. 824-835). She went on to indicate about the School, “So a setting like this allows for a more appropriate education for her because it is directed to her style and need for—her style of learning and need for learning, not just exposure to the curriculum, but the potential for learning how to learn the curriculum, as well as mastering it.” (Trans.P. 843).

During cross examination in discussing the WISC-IV testing data, Dr. admitted that M was not borderline as indicated in the Center Report (S.D. Ex. 9) but average and in reviewing the comparison between the 2009 testing and the 2011 testing her score were also average indicating that they went up but stating that the increase did not amount to a statistical difference though all in the average range.(Trans.P. 858-860). When asked about individual services provided by School directly to M she didn’t know what services were being provided to her other than to say, “But they are exposed to the language therapist through their classes, and sometimes, as I said, the language therapist is the teacher. In M’s case, that’s not so, but she coordinates directly with the science teacher.” (Trans.P. 875). She also indicated that she has never observed a School District class.(Trans.P. 876).

The Parents then called M’s mother, LL as a witness. The beginning of her testimony gave us background information with respect to M. M was classified for services by the CPSE but the CSE declassified her for kindergarten. She was then reevaluated for services for 1st grade and received services, both push-in and pull-out for writing and for sensory issues. (Trans.P. 895). A neurologist diagnosed that she was ADHD. LL indicated that she had few female friends and ran with the boys. She further indicated that M cried every night during 5th grade. She explained about going to the Soifer Center for an evaluation and indicated that they recommended that M attend a private special education school. She stated that the Center indicated, “It was felt, by the Center, that it would be more beneficial for her to be in a situation where it was more structured and more intensive than an hour-and-a-half that was being provided by the School District.”(Trans.P. 901). Thereafter, M was tutored at the Center and LL indicated, that the skills learned were believed to be carried over to the public school setting. LL indicated that socially M was a mess and that she lacked friends and was extremely frustrated at night trying to do the homework and trying to keep up with the academic part of the year. (Trans.P. 904). Eventually LL indicated that M didn’t want to go to school and would either have or make up that she had a stomach ache. LL indicated that they had entered an agreement with School in January, 2012, that was refundable except application fee up until June 1, 2012.(Parents Ex. O). She then indicated that the tuition was for the school year. (Trans.P. 933). The parents entered exhibit N which represented the payment checks. Exhibit P showed math worksheets during the 7th grade school year. The first example contained in the exhibit is dated September 4, 2012 and the next September 28, 2012. They then progressed through the remainder of the school year. She went on to indicate that socially M is completely different. She is happy and has friends and feels better about herself.

TY, M’s father was called as the next witness on behalf of the Parents. His testimony indicated that since M has attended School she has a better attitude toward school, her work and now has friends. She is being invited to parties something that had not happened while she attended Schools. He indicated that she now spent time on her homework and that she appeared to be more organized. (Trans.P. 1015-1017). He did, during cross examination acknowledge that his daughter received a 3 on her NYS Proficiency test in mathematics which indicates that she made grade level proficiency in that subject. We heard earlier that she received a 2 on her English proficiency test.

At the conclusion of TY’s testimony the School District called Jeanine a school counselor at the Schools. She discussed a program called the “lunch bunch” where children can self-refer to a casual discussion held at a lunch table during lunch period with Ms. or other counselors or psychologists who supervise the table. M and other children who wish to be involved in the group can just sit at the table. M participated in the group lunch table periodically through 5th and at the beginning of 6th grade. Ms Isabella also indicated that when she saw M in an around the school she appeared to be happy and had a smile on her face. (Trans.P.1041). She was observed by Ms. to interacted well with other children.

DECISION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

As previously indicated the above recitation of the testimony and reference to the exhibits was done to present the background for the development of the IEP for M’s 7th grade that is actually before the undersigned in this hearing for school year 2012-2013. The actual issue before the undersigned, as in all “reimbursement” cases is actually, was M going to be provided with a “free appropriate public school education” by the proposed IEP?

Initially I find by a preponderance of the evidence as recited above that M presents herself differently to the personnel at the Schools than she does to her parents at home.

A review of the pertinent sections of the Rules and Regulations of the Commissioner of Education will allow for a more orderly discussion of the issues presented to the undersigned for decision in this matter. In pertinent part the Regulations state in section 200.4 (c) (2):

“If the student has been determined to be eligible for special education services, the recommendations shall:

(i) report the present levels of performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(kk) of this part…

(ii) indicate the classification of the disability; (iii) list measurable annual goals consistent with the student’s needs and abilities including benchmarks or short-term instructional objectives and evaluative criteria, evaluation procedure and schedules to be used to measure progress toward the annual goals and to be followed during the period beginning with placement and ending with the next scheduled review by the committee. Such benchmarks or short term instructional objectives shall be measurable, intermediate steps between present levels of education performance and the annual goals that are established for a student with a disability.

The measurable annual goals, including benchmarks or short-term objectives, must relate to:

(a) meeting the student’s needs that result from the student’s disability to enable the student to be involved in and progress in the general curriculum;

and

(b) meeting each of the student’s other educational needs that result from the student’s disability;

(iv) indicate the recommended special education program and services from the options set forth in sections 200.6 of this Part, the class size, if appropriate, and supplementary aids and services to be provided to the student, or on behalf of the student, and the extent to which the student will participate in regular education programs…

(v) provide:

(a) an explanation of the extent, if any, to which the student will not participate in regular education programs;…”

Section 200.6 Continuum of services, states in pertinent part:

“(a) A student with a disability shall be provided with appropriate special education.

(1) To students with disability shall be provided the special education in the least restrictive environment, as defined in section 200.1 (x) of this part.

(2) A student with a disability shall be provided the special education determined by the board of education to be necessary to meet the student’s individual needs…”

A student with a disability is defined in Section 200.1 (zz). All parties have conceded the current classification of Other Health Impaired (Subdivision 10 thereunder) is correct so no definition or discussion of the classification will be included herein because the undersigns agrees with the parties that the classification can be supported by the evidence presented at this hearing. I also find that neither party has raised procedural issues in this hearing so to the extent that they might have been raised I am not making them an issue in this decision. In this instance the parent made preliminary arrangements with the Eagle Hill School prior to the preparation of the final IEP for the 7th Grade Program for M. However, pursuant to the testimony the final IEP was determined on May 30, 2012 prior to the Parents having to finally commit to Eagle Hill School for the coming school year that is by June 1, 2012.

Florence County School District Four v. Shannon Carter, 510 US 7, 126 L.Ed 284 (1993) adopted the criteria established by School Comm. Of Burlington v. Dept. of Education of Mass, 471 U.S. 359 and established guidelines for reimbursement cases where there has been a unilateral private school placement of classified students whether that placement is in an approved or unapproved school. The criteria established by those cases are now well fixed in the law. The guidelines enumerated in those cases and cases that have followed have established a three part test for reimbursement: First: Was the child’s special educational program as offered by the School District properly determined and was it an appropriate educational program? In this instance it means, was the program as contained in the IEP entered in the record as S.D. Ex. 1 an appropriate programs for M? Second: If the School program was inappropriate or procedurally improper, was the parents’ unilaterally selected program or placement appropriate to meet the child’s needs? Third: Do equitable considerations support the parents’ claim for the reimbursement of the costs incurred in the unilateral placement of their child at the Eagle Hill School?

The Rules and Regulations Section 200.4 (d) (2) provides,

“If the student has been determined to be eligible for special education services, the Committee must develop an individualized education program (IEP). In developing the recommendations for the IEP, the Committee must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; as appropriate, the results of the student's performance on any general State or district wide assessment programs; and any special considerations in paragraph (3) of this section. The recommendation shall:

(i) report the present levels of performance and indicate the individual needs of the student according to each of the four areas listed in section 200.1(ww)

of this Part, including:

(a) how the student’s disability affects involvement and progress in the general curriculum; or

(b) for preschool students, as appropriate, how the disability affects the student’s participation in appropriate activities;

I find by a preponderance of the evidence produced at this hearing that M is intellectually capable of doing the class work that has been assigned to her in her various course as and if she is provided with the remediation and accommodations and supplemental services that she needs to obtain benefit from her educational program.

A review of M’s work submitted by the School District which is directly tied to specific goals contained in the prior IEP and contained again in the IEP before the undersigned with the addition of services will provide M with FAPE. I am specifically referring to the work product contained in S.D. Exhibits. 54, 56, and 57. I also specifically refer to the work product contained in exhibits which are directly related to specific goals contained in the prior IEP, that is S.D Exhibits 59, 60, 61, 62, 63, 64, and 65. I also look at the quality of the work and grade obtained in Parents Exhibit P. which is a math test dated September 4, 2012. This is a test that reflects the abilities taught in the School system prior to the School having an effect on M’s abilities. (See also Parent Ex. Q & R dated September 10, 2012) These all present a clear showing that M is doing the work required of her with the proper support that was being provided. Accordingly, I find that the program designed for M for the 7th Grade is an appropriate program and will enable M to obtain an educational benefit from that program. I also find that the program will provide more than a de minimus educational benefit as is clear from the exhibits to which reference is made. I make this finding being mindful that the parents were providing additional support at home and working with her to help her with her school work and to deal with any emotional issues she was presenting to them. I am also mindful of the emotional turmoil that the parents were dealing with when M was with them at home. As previously indicated, M was presenting differently at home with her parents than with the School District Personnel. I find no reason not to believe the testimony of either the school personnel or the parents. I am also mindful that the parents report that the conditions at home have improved since M has begun to attend School. That improvement, however, does not negate my finding that the IEP herein presented for determination provides what I find to be a Free, Appropriate Public Education.

Were it to be determined that I am in error with respect to the appropriateness of the program proposed by the School District I make the following findings with respect to the program proposed by the Parents.

As indicated the second prong of the Carter test is whether the program chosen by the parents is appropriate. The burden of proving the appropriateness of that program is upon the Petitioners. As indicated in Child with a Disability, Appeal No. 01-109 “Petitioner bears the burden of proof with regard to the appropriateness of the services to be provided to her son by the during the 200102 school year (Application of a Child with a Disability, Appeal No 95-57; Application of a Child with a Disability, Appeal No. 94-29). In order to meet that burden, the petitioners must show that the private school, in this instance, the Eagle Hill School, offered an educational program which met the student’s specific special educational needs (Burlington Sch. Comm. V. Dep’t of Educ, 471 U.S. 359, 370 [1985]; Application of a Child with a Disability, Appeal No. 9429). The private school need not employ certified special education teachers, although in this case they do, nor are they required to have their own IEP for the student (Application of a Child with a Disability, Appeal No. 94-20). They must, however, have an appropriate program given M’s specific needs. I do note that the teaching staff at the School had special education credentials and appear to be qualified to teach a special education program but I cannot pass upon the content of the curriculum being taught to M. I believe the discussion on the Applicable Standards and Parents Unilateral Placement as well as the case cited therein as contained in SRO 11-011 are instructional on this aspect of the case. As indicated therein,” A review of the hearing record indicates that the parents failed to present sufficient evidence regarding the student’s academic functioning, here her specific program at during the 2012-2013 school year, or how the educational program at was specifically designed to meet the student’s unique needs. In this instance I was told most of the program was applicable to all the students in the class and it was individualized to M without telling me how it was individualized. Accordingly, the Petitioners have failed to prove the second prong of the Carter decision to the satisfaction of the undersigned.

To reiterate, I find that the program at the School is designed to provide an education to children who present similar but not necessarily the exact learning problems that are presented by M. The evidence with respect to the program at was supplied by the parent’s testimony, progress reports or report cards from the School and by Dr. the Educational Consultant whose organization tested and provided the report entered as S.D.Ex. 9 and later the Speech and Language report entered as S.D.Ex. 6. In her report Dr. Soifer specifically recommended that M attend the School. I was presented with no testimony from the staff at School. I find that, as reported in Dr. s testimony, the credentials of the staff at School are sufficient to appropriately address the needs of students who have special educational needs. I find nothing to question that the School program can help children with similar educational needs as those presented by M. I do, however, find that I have insufficient evidence to find that the School made any adjustments to their regular procedures and program to particularize the program for the specific needs of M. I further find, that the school does not present M with the opportunity to interact with typical students during the school day. That issue is only one consideration and not determinative in my decision, but is a consideration. What is determinative is that M’s specific educational needs are only addressed when an issue or problem presents itself. There is no ongoing regularly scheduled program to address M’s specific educational needs but only a prescribed program that is presented to all students attending the school. I do not believe that it can be said that the needs of all the children and most specifically M’s specific needs can be addressed in the school by a generic program this even if there is an opportunity for 1 on 1 interaction when a problem presents itself. This is true despite the fact that it makes M feel good about herself and any emotional problems are peripherally addressed. This ad hoc addressing of M’s specific educational needs would not be satisfactory if contained in the public school program neither should it be acceptable in a private school placement. Furthermore, I have no objective way to assess the success of the program being presented to M during her time at the school. I have been presented with nothing that allows an objective comparison to be made by the undersigned to assess the effectiveness of the education now being received by M at the School. To say it another way, I have been presented with no objective method or standardized testing to allow me to determine whether educational progress is being made at the School. The progress reports are insufficient to allow me to make an objective determination of progress. The fact that the School delivers its program in a nurturing atmosphere with small class sizes with one on one instruction when needed does not in and of itself mean that the program is appropriate. Accordingly, I find that pursuant to the testimony provided to the undersigned I cannot determine that the program being provided by the School to M is an appropriate program.

With respect to the third prong of the Burlington-Carter test I find the following. Having had the opportunity to observe Dr. during her testimony and to review the Center reports, I find that she has more than a passing interest in the School. I find that she is very knowledgeable in the areas of education herein involved and thus very persuasive when discussing her findings and recommendations and it is easy to see how M’s parents could fully accept her recommendations. Furthermore, because of her Center’s having provided services to M she is able to unduly influence the parents decision for the coming year. I do not give much weight therefore to her specific recommendation for M to attend the School nor to her observations or evaluation of the School (This finding also applies with respect to my decision on the Second Prong as outlined above ). I find that although the parents attended the IEP meetings they did not meaningfully participate. They had previously signed a contract with the School and fully intended to send M to that school irrespective of whatever program was developed and ultimately contained in the IEP for 2012-2013. I do not accept their statement that they continued to keep an open mind. They were unduly influenced by Dr. recommendation to have M attend the School. They gave great weight to Dr. report and specific recommendation for M to attend the School. I find that they were decided that was where M would attend school irrespective of the School District’s IEP. They were not truly open minded or receptive to the School District’s attempts to satisfy M’s needs and overcome the Parents’ previous decision to have M attend the School. I find that they signed a contract in January 2012 and although they had until June 1 to decide before becoming fully committed to that contract, they never intended to have M attend the School District and thus they do not have the equities on their side to have them reimburse for any of the tuition they have paid to have M attend the School.

ACCORDINGLY, THE PETITION MADE ON BEHALF OF M

IS DENIED AS INDICATED HEREIN.

YOU HAVE THE RIGHT TO OBTAIN A REVIEW OF THIS

DECISION BY THE STATE REVIEW OFFICER PURSUANT TO THE

PROVISIONS OF THE EDUCATION LAW 4401, AND PUBLIC LAW 94-

142. IF YOU DESIRE TO APPEAL THIS DECISION A PETITION

SEEKING REVIEW MUST BE FILED WITHIN 40 DAYS DROM THE

RECEIPT OF THIS DECISION AND A NOTICE OF INTENT TO SEEK

REVIEW MUST BE SERVED UPO THE BOARD OF EDUCATION NOT

LESS THAN 10 DAYS BEFORE THE PETITION IS SERVED AND

WITHIN 30 DAYS AFTER RECEIPT OF THIS DECISION. FOR

FURTHER DETAILS, PLEASE CONSULT PART 279 OF THE

REGULATIONS OF THE COMMISSIONER OF EDUCATION.

DATED:

October 28, 2013

PAUL M. ROSEN